King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 73804

Citation821 S.W.2d 495
Decision Date17 December 1991
Docket NumberNo. 73804,73804
PartiesKING GENERAL CONTRACTORS, INC., Appellant, v. REORGANIZED CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, Respondent.
CourtUnited States State Supreme Court of Missouri

Robert K. Ball, II and Karl H. Timmerman, Kansas City, for appellant.

George A. Kapke and Alvin R. Lundgren, Independence, for respondent.

RENDLEN, Judge.

King General Contractors, Inc. (King) appeals the trial court's dismissal of its suit for damages against Reorganized Church of Jesus Christ of Latter Day Saints (RLDS). We must decide whether the current action is barred by the judgment of an earlier case prosecuted against RLDS and Tri-Cote Sales of Kansas City, Inc. (Tri-Cote) arising from the same contracts and the underlying facts at bar. The cause comes here on transfer after opinion from the court of appeals affirming the judgment of the trial court.

On February 22, 1984, Tri-Cote and RLDS entered a contract by which Tri-Cote agreed for the price of $448,016 to encapsulate asbestos-containing materials at RLDS' headquarters building and blow a 3/8-inch coating on the treated areas for sound control, the color to be approved by RLDS. This contract designated King as the subcontractor to do the work and coincidentally Tri-Cote entered a contract with King as the working subcontractor at the price RLDS was to pay Tri-Cote, and King in return would pay Tri-Cote $56,000 for "supervisory services and testing."

Among the problems King encountered, the coating color was unacceptable to RLDS and the encapsuling material began falling from the ceilings. A RLDS representative ordered King to correct the latter problem by "tamping and rolling" the material, which required approximately $7,000 additional expense for King. Finally, RLDS informed Tri-Cote the work was not satisfactory and on July 12, King was discharged.

King's three count petition in the original suit (King I ) against Tri-Cote and RLDS, appropriately described by the trial court as "inartfully drafted," provides a rich example of "potpourri" petition drafting. Count I, set forth below in pertinent part 1, directed against Tri-Cote and RLDS, asserted several claims and while much of the language sounded in tort, the damages sought and the caption to the petition were those of an action in contract. Further, Count I contained a discrete claim against RLDS for extra work (quantum meruit) and finally sought punitive damages. While joining two or more theories of recovery in a single count has been criticized, see King v. Morris, 315 S.W.2d 497, 498 (Mo.App.1958), the trial court suffered Count I citing Rule 55.10 which countenances different claims in a single count.

Count II, which sought recovery of $3,000 from Tri-Cote and RLDS for the unearned portion of a performance bond to which King claimed it was entitled, has no relevance to the present case.

Count III, against RLDS alone, alleged that RLDS "capriciously and arbitrarily interfered with plaintiff's ability to complete his contractual obligation by insisting that the superintendent" be dismissed and attempting to impose RLDS' own superintendent "all to the impediment of plaintiff's ability to perform the terms of his contract, and in interference with his contract with defendant Tri-Cote."

On the first day of trial in King I, this colloquy occurred in open court:

Mr. Morris: [attorney for Tri-Cote] Be that as it may, as I understand you, Mr. Ball, on behalf of plaintiff King General Contractors, you're telling us that you dismiss and make no claim on any tort aspect or recitation contained in the petition; is that correct?

Mr. Ball: [attorney for King] Sure.

Mr. Morris: Or any count thereof?

Mr. Ball: I thought that's what I said.

Mr. Morris: I want to be sure it's all in contract and none of it's in tort.

Mr. Ball: That's what I thought I said.

At the close of plaintiff's evidence, King moved to amend its pleadings to conform to the proof (Rule 55.33(a)) and allow a claim as third-party beneficiary under the Tri-Cote and RLDS contract. The trial court denied this motion and then addressing RLDS' motion to dismiss, noted Count I was essentially a claim for breach of contract and because King was not in privity with RLDS, it was not positioned to assert a claim on contract against that defendant. Further, King had failed to properly raise a third-party beneficiary claim and had abandoned all claims in tort against RLDS. In sum, all portions of Count I relative to the contract claim were found in favor of and a verdict directed for RLDS. However, the court allowed the portion of Count I alleging King performed additional work at the direction of RLDS on quantum meruit to proceed.

Further, it was determined that the claims under Count II were variations on the theme for breach of the contract to which RLDS was not a party and, accordingly, a verdict was directed in its favor.

Count III was interpreted as a claim for tortious interference of contract solely against RLDS and, directing a verdict against plaintiff, the court stated: "In light of what was stated at the very outset, that this case was being tried on a contractual theory and no tort theory, I don't see that this count has any place in this lawsuit."

The remaining portion of Count I against Tri-Cote and the quantum meruit claim against RLDS were submitted to the jury with final judgment entered on the verdict March 8, 1988, awarding King $42,149.99 against Tri-Cote and $7,000 against RLDS reflecting the extra work performed by King at RLDS' direction. There was no appeal from that judgment.

On April 28, the following year King filed the current two count petition (King II ) against RLDS alleging breach of contract under a third-party beneficiary theory and next a claim for tortious interference of contract. RLDS moved to dismiss alleging King's claims were barred by the doctrines of collateral estoppel, res judicata, splitting a cause of action, election of remedies, compulsory joinder and lack of privity. Attached to the motion were various exhibits, which will presently be discussed.

King responded with a counter-affidavit demanding a hearing to adduce "additional facts and evidence pertinent to the issue."

On February 7, 1990, the trial court denied King's demand for a hearing and granted RLDS' motion for dismissal stating that "Counts I & II are dismissed under the doctrine of collateral estoppel." 2 This appeal followed and we affirm.

King contends the court's refusal to conduct a hearing on RLDS' motion to dismiss was violative of its rights to due process and was in contravention of Rules 55.27(a) and 74.04(c). Although RLDS delineated its pleading a motion to dismiss and the trial court employed the term "dismissed" in its order, the court's action was in essence a grant of summary judgment in favor of RLDS. Rule 55.27(a) enumerates twelve possible defenses which may be raised by motion. As noted above, RLDS claimed that King's count alleging tortious interference of contract was barred by the doctrine of collateral estoppel, res judicata, "compulsory joinder of all claims into one action" and "the prohibition against splitting or severing causes of action." While not expressly stated in the Rule, defenses of res judicata and issue preclusion are in essence defenses alleging the plaintiff has failed to state a claim upon which relief may be granted. Rule 55.27(a)(6); Terre Du Lac Association, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206, 212 (Mo.App.1987); Johnson v. Raban, 702 S.W.2d 134, 136 (Mo.App.1985). Such defenses may succeed only if uncontroverted facts demonstrate the present suit is groundless, Johnson v. Raban, 702 S.W.2d at 136, but the trial court must take judicial notice of the prior judgment. Terre Du Lac Association, Inc. v. Terre Du Lac, Inc., 737 S.W.2d at 212. 3

Rule 55.27(a) further provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04. (emphasis added)

Interpreting this rule, the court in Black Leaf Products Company v. Chemsico, Inc., 678 S.W.2d 827 (Mo.App.1984), held that a movant submitting various exhibits including a deposition with its motion to dismiss had transformed the action to one for summary judgment, id., 678 S.W.2d at 829, and though the trial court termed its action a dismissal, introduction of matters outside the pleadings which were accepted and considered by the court, automatically transformed the action. Id.

Such is this case. With its motion to dismiss, RLDS attached four exhibits: copies of the original petition in King I, the underlying contract, the court's order in King I granting the directed verdict, and the court's judgment in King I. King responded with its affidavit in opposition accompanied by the following: copies of all jury instructions from King I, a partial transcript of the King I testimony and a copy of RLDS' motion for directed verdict filed in King I. The acceptance and consideration of this evidence by the court effectively "transformed" the proceeding to one under Rule 74.04.

Having identified the nature of the action, we address King's allegation that the motion court's denial of its request for hearing constituted a denial of due process guaranteed under both the United States and Missouri constitutions.

Great caution must be exercised in granting summary judgment as it "borders on denial of due process." Y.G. v. Jewish Hospital of St. Louis, 795 S.W.2d 488, 494 (Mo.App.1990). Missouri cases reveal divergent views as to the necessity of a hearing on motions for summary judgment. Rule 74.04 does not...

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